Free Amended Complaint - District Court of Federal Claims - federal

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UNITED STATES COURT OF FEDERAL CLAIMS

) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

ISMAEL JOHN, JACKSON ADING, JAMES GIDEON, KUNIO JOSEPH, HARRY JACKSON, BOAZ DAVID, SAM LEVAI, BALIKEN JACKSON, DAVID OBET, KOSIMA JOHANNES, JINET LANGRUS, EBEL JOSEPH, GEORGE YOSHITARO, ISAHO LUTHER, BIKENJI PAUL, NEPTALI PETER, and MOSES ABRAHAM, For themselves and For a Class Consisting of the People of Enewetak,

No. 06-289 L

Hon. Christine O.C. Miller

AMENDED COMPLAINT Plaintiffs, for themselves and for a class consisting of the people of Enewetak, allege as follows:

NATURE OF ACTION 1. Enewetak Atoll is private property, owned by the people of Enewetak. For centuries, it was the only property owned by the people of Enewetak who relied ec s e o t a lseor so t ines Af dy bfr C rt a i xl i l n h t l r uc frh r ed. e as e e him sn uv y e o' s e e w o s 1947, the Enewetak people were removed from their homeland by the United States government because the United States wanted to use Enewetak Atoll for nuclear weapons testing. Enewetak Atoll was chosen as a nuclear test site by the United States so that the

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United States mainland would be spared the devastating effects of high-yield nuclear weapons tests. Forty-three nuclear weapons tests were detonated by the United States on E e e ki l i t w r 'fst r oul rhdoe) nw t , c d gh ol sith m nc a(yrgn bomb explosion. Prior a nun e d r e e to removing the residents of Enewetak, the United States told the Enewetak people that the United States would recognize and protect their rights, would ensure that they were provided with all of the constitutional rights accorded to U.S. citizens, and would protect and care for them during their period of displacement. The United States used Enewetak for the next 33 years. The Enewetak people suffered extraordinary hardships during the 33 years they were displaced from Enewetak. Although the United States did undertake a cleanup effort between 1977 and 1980, more than half fh a lsad e a s o t tl l r i e o' n m n contaminated and uninhabitable. 2. In the Compact of Free Association, the United States accepted responsibility to provide just compensation for the losses and damages resulting from its nuclear testing program at Enewetak and agreed to the establishment of a Nuclear Claims Tribunal to render final determination of all claims, past, present, and future relating to its nuclear testing program. After an extensive hearing, applying standards that would be applied by U.S. courts adjudicating comparable situations, the Nuclear Claims Tribunal determined the just compensation owed to the Enewetak people for the loss and damage they suffered as a result of the nuclear testing program, and the Tribunal awarded the Enewetak people damages in the amount of $385,894,500. The United States failed, however, to provide the Nuclear Claims Tribunal with adequate funding to pay the award to the Enewetak people, and the just compensation has not been provided to them. The Government of the Republic of the Marshall Islands has requested funding from the United States to pay

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the award to the Enewetak people, but the United States has, to date, refused to fund the award, thereby depriving the Enewetak people of the just compensation required under the Fifth Amendment to the United States Constitution. 3. This Complaint seeks to enforce one of the most basic rights of free people ­ the right to just compensation when property is taken. It also seeks to enforce promises made repeatedly by officials of the United States government, promises that were made as part of a contractual relationship established between the United States and the People of Enewetak. The People of Enewetak made enormous sacrifices during the Cold War and helped the people of the United States to protect their freedoms and prevail during this long twilight struggle. This Complaint seeks an honorable resolution to the long and difficult ordeal that the Enewetak people have been required to endure. 4. This Complaint seeks just compensation under the Fifth Amendment to the United States Constitution for several separate takings by defendant of property rightfully belonging to the plaintiffs: (a) The taking on December 21, 1947 of the land and lagoon that comprises Enewetak Atoll. This taking lasted under a series of temporary takings until October 1, 1980 when defendant permitted Plaintiffs to resettle and reinhabit the southern islands of the atoll. (b) The taking that began on October 1, 1980 for over half the land mass and lagoon of Enewetak Atoll and will continue in whole or in part for the nx 2 t 5 ya . c T eai o p i isj to pnao adm ld et 0o 0 er ( h t n f ln f 'u cm est n n i p e-in-fact s ) kg a tf s i i cn atlm b df dn sndqa fni o the Nuclear Claims Tribunal. This ot cc i s y e nat i eut ud g f r a e ' a e n cm ln a o ek dm gso df dn s r ce o i f ui y u e tt o p i l ses a ae fr e nat be hs ft i c r dtso h ats e ' a sd a i e Enewetak people created by a contract implied in fact by failing to return Enewetak Atoll to the Enewetak people with compensation for the use of Enewetak and for any damage

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tt a l ad a ae fr e nat bece o i f ui y u e t poi fr o h t l n dm gso df dn s r hs ft i c r dtso rv eo e o; e ' a sd a i d their needs while displaced from Enewetak and until they are again able to live on all the a a o t a lad u y xl tlt a lseor s At r s fh t ln fl ep ia h t l r uc . l e e o l o l e o' s e ernatively, plaintiffs seek just compensation and/or damages because the Compact of Free Association and related agreement constitute (a) Fifth Amendment takings of Enewetak Atoll; and (b) breaches of fiduciary duties created by a contract implied in fact.

JURISDICTION 5. This court has jurisdiction pursuant to 28 U.S.C. § 1491 and the Fifth Amendment of the United States Constitution. 6. The people of Enewetak, the class of plaintiffs for which this claim is filed, were citizens of the United States Trust Territory of the Pacific Islands but are now citizens of the Marshall Islands. All plaintiffs were members of the Enewetak community in December 1947, when all of the inhabitants of Enewetak Atoll were removed from Enewetak Atoll by defendant to Ujelang Atoll prior to the commencement of a series of nuclear weapons tests conducted by defendant on Enewetak Atoll, or are either (i) direct descendants of such members or (ii) otherwise recognized as members of the Enewetak people by traditional law and custom. All plaintiffs possess land rights on Enewetak Atoll. 7. The people of Enewetak are governed locally by the Enewetak/Ujelang Local Government Council (hereinafter "Enewetak/Ujelang Council"), whose membership is determined in accordance with the Constitution of the Enewetak/Ujelang Local Government. The Enewetak/Ujelang Council consists of a Mayor, thirteen Council

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members and two Iroij (chiefs). The Enewetak/Ujelang Council is a political subdivision within the Republic of the Marshall Islands. The people of Enewetak are represented by a Senator in the Nitijela. 8. Plaintiff Ismael John is the Senator for the people of Enewetak. 9. Plaintiff Jackson Ading is the Mayor of the people of Enewetak. 10. Plaintiffs James Gideon, Kunio Joseph, Harry Jackson, Boaz David, Sam Levai, Baliken Jackson, David Obet, Kosima Johannes, Jinet Langrus, Ebel Joseph, George Yoshitaro, Isaho Luther, Bikenji Paul, are members of the Enewetak/Ujelang Council. 11. Plaintiff Neptali Peter is Iroij of the ri-Enewetak, Plaintiff Moses Abraham is Iroij of the ri-Enjebi.

CLASS ACTION ALLEGATIONS 12. This action is brought and may properly be maintained as a class action under Rule 23 of this Court. 13. The named plaintiffs bring this suit on their own behalf and on behalf of the class they seek to represent. 14. The class the named plaintiffs seek to represent is composed of all persons recognized as members of the Enewetak people by traditional law and custom. This class consists of all living persons who were members of the Enewetak community at the time of the 1947 evacuation of Enewetak Atoll, all living descendants of those members, and all other persons who by traditional law and custom are recognized as members of the

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Enewetak people. This class is so numerous that the joinder of all its members is impracticable. There are currently more than 2000 members of the Enewetak people. 15. The questions of law and fact raised by this Complaint are common to the class, and the claims of the named plaintiffs are typical of the claims of the class. The named claimants will adequately and fairly protect the interests of the class and they are represented by counsel experienced in class action litigation. 16. Defendant has acted and refused to act on grounds generally applicable to the class, and df dn s cos e nat at n have generally affected the entire class. The common e ' i questions of law and fact involved in this action predominate over any questions affecting only individual members, and class action treatment is superior to other available methods for the fair and efficient adjudication of this claim.

INTRODUCTION AND BACKGROUND A. Location of Enewetak 17. Enewetak Atoll is located in the extreme northwestern part of the Marshall Islands. It is one of 29 atolls and 5 islands comprising the Marshall Islands, which are scattered over 357,000 square miles north of the equator in the central Pacific Ocean. A map of the Marshall Islands is attached as Exhibit A. 18. The Marshall, Caroline, and Mariana Islands (which collectively are known as Micronesia) were the geographical components of the Trust Territory of the Pacific Islands, which consisted of more than 2,000 islands and atolls dispersed throughout an ocean area approximately the size of the continental United States. B. U.S. Governmental Authority over the Marshall Islands and Enewetak Atoll

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19. In 1885, Germany seized control of the Marshall Islands from Spain, which had exercised nominal control over Micronesia since the late l600s. Germany purchased S a 'r a i hl nsn c ns i 19 ad ot ld h iad ut Jpn pi se i n o i iMi oei n 89 n cn o e t s ns n laa n m ng dg r a rl e l i seized them at the outbreak of World War I. Japan administered Micronesia under a League of Nations Mandate until World War II, when the islands were occupied by the United States in 1944. 20. Shortly after the United States invaded Majuro Atoll in the Marshall Islands on January 30, 1944, Admiral Chester W. Nimitz, Commander in Chief of the United States Pacific Fleet and United States Military Governor of the Marshall Islands, issued Proclamation No. 1, pursuant to which the United States assumed all powers of government in the Marshall Islands. Proclamation No. 1 became effective as to Enewetak Atoll in February 1944, when the atoll was occupied by United States military forces. 21. On July 18, 1947, , the Marshall Islands, together with the rest of Micronesia, w rbogtn t U id aos" .. t s eh ss m wtt U id te e ruh i oh n e N t n ( N" r t si yt , i h n e Sa s e t e t i U )ue p e h e t t as administering authority, pursuant to the terms of a Trusteeship Agreement for the Former Japanese Mandated Islands, 61 Stat. 3301, T.I.A.S. No. 1665 (1947). In order to preserve U.S. control of the area, Micronesia, now also called the Trust Territory of the Pc iIad, a ds nt a sa g t s"h oloen h UN ss m I aics nsw s ei a d "t t i r t t n n i t ..yt . n f l g e re c u , e y e e addition, the United States as administering authority reported to the U.N. Security Council, where it had veto power. 22. T e rs eh A r m n gat t U id te " lpw ro h Tut si ge etr e h n e Sa s f l o e f e p e nd e t t u s am n t t nl iao,n j i ii " vrh Tut e i r ad h r h t d i sao, g li adu s co oet rsT rt y n t i to ir i e s t n rd t n e ro eg fortify the islands and close off parts of them for security purposes. At the same time, it

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recognized certain fiduciary obligations of the United States to the people of the Trust Territory, including the Enewetak people. The Trusteeship Agreement, inter alia, obligated defendant to: . . . promote the economic advancement and self-sufficiency of the inhabitants . . . [Article 6(2)]; . . . protect the inhabitants against the loss of their lands and resources . . . [Article 6(2)]; . . . improve [their] means of transportation and communication . . . [Article 6(2)]; . . . protect the rights and fundamental freedoms of all elements of the population without discrimination . . . [Article 6(3)]; . . . protect the health of the inhabitants . . . [Article 6(3)]. 23. Defendant expanded on this pl g i 14,ti t tt a " e o c o e en 97s t gh iw s t ply f d an a h i t U id te t t [rsT rt y o nro pi tpoe y eu e fr ul h n e Sa sh ... Tut e i r] w e f r a rpr r i d o pb c e t t a ro s ve t qr i ue hlb poe y o pna d o t l s f rpr t e,ad htf f r s sa e rpr cm est frh o o poe ya n n t iaa l l e e s t k " a i agreement compensating the property owner by award of title to other land could not be r ce,cs cm est n rmt dto si rii odr e hd"ah o pnao f h a fe uesn re " a i o e e z . 24. A U.S. representative assured the U.N. Security Council in 1947: My Government feels that it has a duty towards the peoples of the trust territory to govern them with no less consideration than it would govern any part of its sovereign territory. It feels that the laws, customs and institutions of the United States form a basis for the administration of the trust territory compatible with the spirit of the Charter. For administrative, legislative and jurisdictional convenience in carrying out its duty towards the peoples of the trust territory, the United States intends to treat the trust territory as if it were an integral part of the United States.

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25. President Truman terminated the military government of the Trust Territory on July 18, 1946 (the effective date of the Trusteeship Agreement), and delegated civilian administration of the Trust Territory to the Secretary of the Navy. Executive Order No. 9875. In 1951, administrative responsibilities were transferred to the Secretary of the Interior by Executive Order No. 10,265. During 1952 and 1953, the President transferred responsibility for administration of parts of the Trust Territory back to the Secretary of the Navy. Executive Orders Nos. 10,408 and 10,470. Not until 1954 did Congress begin to legislate to implement the Trusteeship Agreement and then it merely stated that until it should provide further for the government of the Trust Territory all governmental authority was vested in the President. See 48 U.S.C. § 1681. In 1962, the President redelegated his authority for civil administration of the entire Trust Territory to the Secretary of the Interior. Executive Order No. 11,021. 26. In each of the Executive Orders described and referenced in paragraph 25, the President ordered the civilian administration to carry out the obligations assumed by the United States under the terms of the Trusteeship Agreement. The Trusteeship Agreement also constituted a part of the Trust Territory Code, the organic law made applicable to the Trust Territory by the United States. 27. The executive authority of the Government of the Trust Territory was vested in the High Commissioner of the Trust Territory. The High Commissioner and other subordinate Trust Territory officials acted under the general supervision and direction of the Secretary of the Interior, subject to the authority of the President and pursuant to Acts of Congress. See Department of the Interior Orders Nos. 2918 (December 27, 1968, as amended March 24, 1976), 3027 (September 29, 1978), and 3039 (April 25, 1979). The

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High Commissioner was appointed by the President with the advice and consent of the United States Senate. The first proclamation issued by a High Commissioner, on July 18, 14,none t t e xr sd a pw ro gvrm n adui ii ..n 97anucdh h ee i "l o e f oe etn j s co .ad a ce l s n rd t n f aam n t t eepni ly oet Tut e i r and its inhabitants. Any local i ld i sav r os it vrh rsT rt y n ir i s b i" e ro laws inconsistent with the Trusteeship Agreement, Interior Department Orders or Executive Orders, or any directive of the High Commissioner, would be null and void. 28. Under the United Nations Trusteeship Agreement, the People of Enewetak and the other inhabitants of the Marshall Islands became citizens of the Trust Territory of the Pacific Islands with passports reflecting this status. They remained citizens of the Trust Territory until 1990, when the Trusteeship terminated. 29. In 1964, the Interior Department created a Trust Territory governmental entity called the Congress of Micronesia, but the High Commissioner retained the right to vta l s asd yh C nr s n t eatugn l s o ps d yt e l a ps b t oge ad o nc"ret a nt as b i o lw e e s " w e . 30. During the entire trusteeship period, defendant maintained strict control over the Trust Territory. The Trust Territory Government could not communicate directly with foreign governments and international bodies, and the High Commissioner maintained control over budget, accounting, and other relations with U.S. government agencies. Even after the Marshall Islands formed its own constitutional government in 1979, the High Commissioner continued to maintain authority over all laws and eight categories of administrative functions, including budget, accounting, and all relations with United States government agencies and foreign governments. Indeed, as late as December 1982, defendant prevented the Marshall Islands Government from signing the Law of the Sea Treaty.

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C.

Political Status Negotiations on the Compact of Free Association 31. In 1969, discussions commenced between Micronesian officials and

defendant concerning the future political status of the Trust Territory. 32. During the course of these talks, it was reported that the CIA had regularly conducted electronic surveillance on Micronesian negotiators to obtain intelligence on their negotiating positions in the political status talks. Senate hearings in 1977 confirmed that Secretary of State Henry Kissinger had ordered these actions, which included the bugging as well as placing a spy on the Micronesian negotiating team. 33. By 1978, the Trust Territory fragmented politically into four governmental entities: the Northern Mariana Islands, Palau, the Marshall Islands, and the Federated States of Micronesia. 34. In Department of the Interior Secretarial Order No. 3027, the Secretary of the Interior established procedures for Palau, the Marshall Islands, and the Federated States of Micronesia to develop local constitutions. In Order No. 3039, the Secretary of the Interior recognized a local government for the Marshall Islands, under a constitution of the Marshall Islands adopted by plebiscite on May 1, 1979. Under this local governmental structure, the Marshall Islands exercised certain powers of self-government under the administration of the United States. Pursuant to Order No. 3039, the U.S. High Commissioner maintained an absolute veto power over all enactments of the Marshall Islands legislature, however, and continued to exercise, under the general supervisory at ry fh Sc t y fh It i ,a at ry ee u oi o t er a o t n r r"l u oi ncssary to carry out the h t e er e eo l h t obligations and responsibilities of the United States under the 1947 Trusteeship A r m n" ge et e .

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35. In 1976, the Northern Mariana Islands attained Commonwealth status. See Public Law 94-241 (March 24, 1976). The Marshall Islands, the Federated States of Micronesia, and Palau separately negotiated new political relationships with the United States. All three initialed Compacts of Free Association in October and November 1980 which defined their future relationships with the United States. "r A sc t n ia Fe s ii "s e o ao political relationship recognized by the U.N. General Assembly as a middle ground between full integration and independence. Under this status, embodied in the Compacts of Free Association, the three governments obtain financial assistance from the United States and are permitted some degree of self-government and the limited ability to conduct their own foreign affairs except insofar as the United States determines them to be incompatible with U.S. defense responsibilities. The United States also has the right to maintain its military base in the Marshall Islands and to foreclose access to Micronesia by the military of any third country. 36. The United States, as administering authority of the Trust Territory, vetoed plans for a 1982 plebiscite to determine the future political status of the Marshall Islands because independence was going to be on the ballot along with free association and continuation of the U.N. trusteeship. The United States insisted that the option of independence be removed from the ballot. 37. Although the Marshall Islands Government initialed the Compact in 1980, it did not become effective until 1986. During this period, the Marshall Islands Government, as its Chief Secretary testified befoeh US C nr sw s c tay r t .. oge , a "ri l e s ic l cnrn d i a e osi ni c s " n o t vre f akut . h Marshall of t wt sr u f ac lri ad n h e o bnrp y T e oe h i n a is e g c Islands Government'i r t c r hd e r r e bd ,u i l g prt ere sn a r t e a dt i a d al den a e a o a i f su u eo t y r t lr

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U.S. neglect. Based on U.S. assurances that the Compact would go into effect in 1981, the Marshall Islands Government borrowed against Compact funding to initiate a major capital improvement program, but this only led to further economic dependence on the United States and thus weakened the Marshall Islands G vrm n s a a i psi oe et br i n oio n ' g n g tn on the Compact and any possible nuclear claims settlement. 38. The final version of the Compact was signed on June 25, 1983 and was approved in a plebiscite by the Marshallese that September, and President Reagan submitted the Compact to Congress in 1984. After making extensive modifications, Congress approved a final version in December 1985. The President signed the Compact of Free Association Act into law on January 14, 1986 (Pub. L. No. 99-239, 99 Stat. 1990) and by proclamation dated November 3, 1986, he declared the Compact to be in effect. Today, the Republic of the Marshall Islands (RMI) is a freely associated state.

STATEMENT OF THE CASE A. Enewetak and Its Early History 39. The approximately 40 islands of Enewetak Atoll have a combined land area of approximately 2.75 square miles. The two largest islands are Enewetak Island, in the southeast quadrant of the atoll, which has a land area of 321.86 acres, and Enjebi Island, on the north rim, which has a land area of 290.58 acres. The islands of the atoll enclose a lagoon area of approximately 388 square miles. A map of Enewetak Atoll is attached as Exhibit B hereto. 40. The Enewetak people have traditionally been divided into two more or less separate and distinct communities located on the two largest islands on the atoll: the ri-

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Enjebi, situated on Enjebi Island on the northern part of the atoll, and the ri-Enewetak, located on Enewetak Island, across the lagoon in the southeast quadrant of the atoll. The traditional settlement pattern of both communities was dispersed; residents were located on separate land parcels and were scattered along the length of the lagoon beach. Members of the two communities historically have intermarried and cooperated in certain economic activities, and now elect a common council. Nevertheless, the Enewetak people continue to maintain their hereditary ties to one or another of the two groups. 41. The people of Enewetak have always maintained a deep emotional attachment to their home islands and ancestral land. Under traditional Enewetak land tenure law and custom, every individual was - and still is - born with land rights in the islands of Enewetak Atoll and, collectively with the other members of the community, r h tt a lsaon n i r or s Land is regarded as a commodity that i t o h t l l o ad t e uc . g s e o' g s s e cannot be sold, even to other members of the Enewetak community, but may only be passed from generation to generation. Ties to the land are therefore unusually strong. Throughout Enewetak history, land rights have never been sold or given away to outsiders except through fear of physical force or other sanction. 42. Prior to their removal from Enewetak Atoll in 1947, the people of Enewetak relied almost exclusively upon non-intensive agriculture, lagoon fishing, and various gathering activities for their material needs. Beginning in the early twentieth century, the people of Enewetak also produced copra (dried coconut meat) as an export crop for occasional purchases of imported items. The people remained economically selfsufficient and their life-style changed little from the time they first settled on Enewetak Atoll (probably in the fifth or sixth century) until World War II.

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B.

World War II and United States Occupation 43. During World War II, the Japanese made Enewetak Atoll a strategic base,

fortifying the atoll and constructing an airfield on Enjebi. Several thousand Japanese military personnel occupied the atoll. 44. In February 1944, United States troops captured Enewetak Atoll from the Japanese. 45. Because of the military campaign, the people of Enewetak were severely in need of food, shelter, clothing, and medical attention when the American forces occupied the atoll. Indeed, eighteen Enewetak people had been killed during the battle for the atoll. The commanders of United States forces on the atoll therefore took the following measures to aid the people of Enewetak and to maintain order during the presence of active military operations on the atoll: (a) On February 17, 1944, the Marine Corps gathered the inhabitants of

Enjebi Island, who had all moved to unoccupied islands along the east fringe of the atoll, into a temporary camp and gave them food and medical supplies. (b) On February 18, 1944, the inhabitants found on Enewetak Island were sent

out to the U.S.S. Cambria to be given food and to be questioned. Later they were returned to shore and given shelter in a huge bomb crater. Food was sent ashore and its distribution assigned to the two chiefs. In the following days the military beachmaster had the crater enlarged, had a tarpaulin erected to provide temporary shelter, and issued the people blankets, clothing, food, and cooking utensils. As other Enewetak people were found on the atoll, they were brought to this shelter.

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(c)

On February 24, 1944, the inhabitants of this camp were moved to Aomon

Island, also part of Enewetak Atoll. On February 25, the inhabitants of Enjebi were transferred to Aomon. Eventually, the total population of the atoll was gathered in the camp on Aomon. (d) On February 24, 1944, the military government officers posted the

proclamation issued by Admiral Nimitz described in paragraphs 20 and 185. On February 25, the officers held a meeting with the people of Enewetak in which the officers told the people that (i) they must all live on Aomon Island for the time being; (ii) they must not build fires at night; and (iii) they must cooperate to conserve food supplies and to develop indigenous food sources. The military officers also arranged to make the services of a doctor available to the people. 46. After July 4, 1944, when the Army unit left the atoll, the Navy continued feeding, clothing, and housing the Enewetak people on Aomon Island and adjacent Bijire Island. The Navy continued to provide and maintain all the supplies of food, clothing, housing, and other provisions until June 1946, when the Enewetak people were first removed from the atoll. During that time, the United States also organized efforts to redevelop indigenous food sources, restored a school, and provided medical care in a military hospital on Enewetak. 47. During the period February 1944 to late 1945, the United States military government controlled the access of the Enewetak people to the atoll. The Enewetak people were permitted to reside on Aomon and Bijire Islands, but many of the other islands in the atoll either were strictly off-limits to them or could be visited or resided on only with permission of the military government. The United States military government

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also restricted access of the Enewetak people to large portions of the lagoon. During this period, the United States used portions of these islands and the lagoon for various military purposes, including storage of supplies, location of buildings, rifle target practice, marching, and training. C. First Removal from Enewetak Atoll 48. In June 1946 the entire population of Enewetak Atoll was removed from the atoll prior to the commencement of Operation Crossroads, the first series of atomic tests aBk i t l nw t Ao 'es a ni brnh Ma hlIad. t i n Ao , e e k t l at r e ho i t i lE a ls w d g e r a s ns The United s ll States officials who were in charge of Operation Crossroads decided that the evacuation was a necessary precaution against the possibility of damage to Enewetak Atoll and its people resulting from the tests. The people of Enewetak were transported by the Navy to Kwajalein Atoll on June 14, 1946. From June 14 to July 30, 1946, the Enewetak people were housed in temporary facilities there and provided with food and other supplies by the Navy. On July 25, 1946, after the detonation of atomic weapons at Bikini Atoll on June 30, Enewetak Atoll was declared safe. On July 30, 1946, the Enewetak people were returned to Aomon and Bijire Islands at Enewetak Atoll. 49. The people of Enewetak never consented or otherwise agreed to be

evacuated from Enewetak Atoll and/or relocated to Kwajalein Atoll. Rather, they submitted to the operation in the face of statements and actions by United States officials which led them reasonably to believe that these officials were ordering them to relocate from their homes, that they were given no choice whether to relocate or not, that their objections would not be heard or considered, and that their cooperation was necessary to avoid the use of force by the United States. At no time were the Enewetak people

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planning to move anywhere or desirous of moving anywhere, but were looking forward to improving conditions on their home islands. 50. During the period of residence of the Enewetak people on Kwajalein,

United States officials directing the operation, through their actions and statements, led the Enewetak people to believe, and the Enewetak people did in fact reasonably believe, the following: (a) (b) that their removal from Enewetak Atoll would be temporary; that they would be able to return to their homes on Enewetak at the conclusion of the temporary use of their atoll in connection with the Bikini atomic tests; (c) that Enewetak Atoll would be returned to them in as good condition as when they were removed from it; (d) that their temporary relocation was necessary in order to protect them against harm to their health resulting from operations being conducted on Bikini Atoll; and (e) that throughout their relocation their needs for food, shelter, and other necessities would be fully met by the United States. D. Second Removal from Enewetak Atoll 51. In June 1947, President Truman authorized planning for Operation SANDSTONE, a series of nuclear tests designed to develop a new series of weapons. On December 1, 1947, Enewetak Atoll was chosen to be the site for those tests. 52. On November 25, 1947, President Truman issued a Directive to the Secretary o D f s frh r oao t E e e k ep f mE e e k t lpreliminary to f e neo t e vlfh nw t pol r nw t Ao " e e m e a eo a l

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the carrying out of tests of atomic weapons early in 1948, and in accordance with the enclosed memorandum addressed to the president by the Chairman of the Atomic Energy Commission."Pei nTu a'Dr t e n t A Cm m r dmare attached as r d t rm ns i cv ad h E e oa u se ei e n Exhibit C. 53. T e e oadmaahdo r i n Tu a'Dr t e ec bd h h m m r u tce tPe d t rm ns i cv dsr e t n t se ei i e rights of the Enewetak people and the responsibilities and obligations assumed by the United States. The memorandum, inter alia, states: (a) They [the Enewetak people] will be accorded all rights which are the normal constitutional rights of the citizens under the Constitution, but will be dealt with as wards of the United States for whom this country has special responsibilities. The displacement of local inhabitants [the Enewetak people] will be kept to a minimum required for their own safety and well being and will not be accomplished merely for considerations of convenience. The displacement of local inhabitants [the Enewetak people] will be effected by agreements reached with them regarding resettlement, including fully adequate provisions for their well being in their new locations. The Atomic Energy Commission and the Secretary of Defense will undertake to supply to the State Department evidence sufficient to demonstrate in an international forum that in conducting such experimentation in Eniwetok (sic), the United States is not thereby subjecting the local inhabitants of the Trust Territory of the Pacific to perceptibly greater danger than, say, the people of the United States.

(b)

(c)

(d)

54. In a dispatch from Admiral Ramsey, the Chief of Naval Operations, dated 5 December 1947, the rights of the Enewetak people and the responsibilities and obligations of the United States were summarized as follows: Pursuant to orders from the President the Secretary of Defense has directed SECNAV to effect the evacuation of the natives of Eniwetok (sic). In recommending this action

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the Atomic Energy Commission stated that the inhabitants of the atoll would be accorded the normal constitutional rights accruing to U.S. citizens under the constitution and treated as wards of the United States; and that adequate provision would be made for them in their new location.

A copy of the dispatch is attached as Exhibit D. 55. The United States decided to remove the Enewetak people to Ujelang Atoll. That atoll had been developed as a commercial copra plantation using wage laborers from the Eastern Carolines, during the German and Japanese colonial periods. It was abandoned during World War II, however, and was uninhabited at the beginning of December 1947. Ujelang Atoll is small, resource poor, remote, and isolated. 56. In December 1947, John P.W. Vest, Captain, U.S. Navy, and the United States Governor of the Marshall Islands, arrived on Enewetak Atoll and informed the Enewetak people that within days they would have to leave their atoll and that they would be moved. Captain Vest understood and communicated to the Enewetak people that the use of Enewetak would be temporary and that the Enewetak people would be able to return to their homeland within 3 to 10 years. 57. In December 1947, the entire population, carrying what they could of their personal belongings, left Enewetak Atoll aboard a U.S. Navy LST vessel. On December 21, 1947, the Enewetak people arrived at Ujelang Atoll. 58. The people of Enewetak never consented or otherwise agreed to be evacuated from Enewetak Atoll and/or relocated on Ujelang Atoll. Rather, they submitted to the relocation and the taking of their home atoll in the face of statements and actions by United States officials which led them reasonably to believe that these officials were ordering them to relocate from their homes, that they were given no choice whether to

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relocate or not, that their objections would not be heard or considered, and that their cooperation was necessary to avoid the use of force by the United States. At no time were the Enewetak people planning to move anywhere or desirous of moving anywhere, but were looking forward to improving conditions on their home islands. 59. During the period of the removal of the Enewetak people to Ujelang Atoll and afterwards, United States officials, through their actions and statements, as specified in paragraphs 52-54, 56 and further specified in paragraphs 188-192, led the Enewetak people to believe, and the Enewetak people did in fact reasonably believe, the following: (a) (b) that their removal from Enewetak Atoll would be temporary; that they would be accorded the normal constitutional rights accruing to U.S. citizens under the Constitution; (c) that they would be able to return to their homes on Enewetak at the conclusion of the temporary use of their atoll by the United States; (d) that Enewetak Atoll would be returned to them in as good condition as when they were removed from it; (e) that their temporary relocation was necessary in order to protect them against harm to their health resulting from operations on their atoll; (f) that they would not be subjected to any greater dangers from the nuclear tests than citizens of the U.S.; and (g) that throughout their relocation their needs for food, shelter, and other necessities would be fully met by the United States. 60. The people of Enewetak never consented or otherwise agreed to remain on Ujelang Atoll. Rather, they remained in residence there until the United States permitted

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them to return to Enewetak Atoll in the face of statements and actions by United States officials which led them reasonably to believe that these officials would not permit them to return to Enewetak Atoll until the conclusion of its use and occupancy by the United States. 61. The people of Enewetak never intended to convey, and never in fact conveyed, any right, title, or interest in Enewetak Atoll to the United States. 62. During the period of their residency on Ujelang Atoll, United States officials, through their actions and representations, continued to lead the Enewetak people to believe, and the Enewetak people did in fact reasonably believe, the accuracy of the information set forth in paragraph 59. E. Conditions on Ujelang 63. Ujelang Atoll is the westernmost and most geographically isolated of the inhabited atolls and islands comprising the Marshall Islands. It lies 124 miles southwest of Enewetak Atoll and 617 miles west of Majuro, the capital and the major commercial port for the Marshall Islands. Ujelang Atoll has 0.67 square miles of dry land area and 2. surm l o l on uf e r , uh eshn nw t Ao '2 5 qa 5 7 qa is fa o sr c a am c l t E e e k t l . sur 4 e e g a e s a a ls 7 e miles of dry land area and 388 square miles of lagoon surface area. Ujelang Island, the l gso t a ls a etfh t l islands, is rocky and unproductive as compared with the principal r e o' islands of Enewetak Atoll. 64. As described in paragraph 55, Ujelang Atoll was uninhabited at the time the Enewetak people moved there, and no one had been living there for several years. Useless brush had grown up everywhere and there were no breadfruit trees.

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65. During the period just before and shortly after the Enewetak people moved to Ujelang, United States Navy personnel constructed temporary housing, rain catchments, and several other buildings there. All United States personnel left Ujelang shortly thereafter, leaving some food supplies, but also leaving the Enewetak people completely isolated from the rest of the world except through infrequent and irregular visits by Trust Territory field trip ships. The Enewetak people remained isolated on Ujelang until they were able to return to Enewetak in 1980. 66. Ue n'r or s e i dqa t splt E e e k ep wt a jagse uc w r n eut o up h nw t pol i l s e e a e y e a e h regular supply of food and other material necessities. This lack of resources, combined with the infrequent and irregular ship visits, resulted in periods of extreme hunger and material deprivations. The inadequacy of export resources and the lack of incentive to produce trade goods caused by the infrequent and uncertain ship visits resulted in severe shortages of imported rice, flour, and materials for repair of buildings and boats. 67. B 15, otfh E e e k ep 'sin cne w r r dr y 92m so t nw t pol s ai aos e e e d e a e lg e n e unusable by a severe shortage of sailcloth, paint, fishing net material, and hooks. In r pneo h E e e k ep 'r et r usso t s m t isa pc lid e os tt nw t pol se a d e et frh e a r l sei f l s e a e p e q ' e ea , a e trip ship arrived in December 1952, but brought only enough sailcloth for two canoes, paint that was unsuitable for the canoes, and little else of use. 68. Production of copra - the chief export crop - gradually diminished during the period on Ujelang. T endqay f jagseor s n t i r uny n h i euc o Ue n'r uc adh n e ec ad a l s e e fq unreliability of field trip ship visits created food shortages that induced the people to eat the coconuts instead of making copra to sell.

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69. In the mid-l 0 t rw s getnr s i t iadsappli , 9 sh e a a r i e en h s n'r ou t n 6 e a ca el t ao which fed off and destroyed the stored copra and the supplies of imported rice and flour. The proliferating rat population became a menace to the children and adults on Ujelang, who had to sleep in wooden boxes for protection. 70. By 1967, food was so short that the people on Ujelang had only enough for one meal each day. The housing supply was greatly deteriorated because of the lack of materials for maintenance and repair, and several buildings had been destroyed by a typhoon. 71. On October 20, 1967, a Trust Territory ship arrived to find the people on Ujelang with no copra to sell and no money to buy needed food and supplies. Almost all of the nearly 300 people of the atoll boarded the ship and demanded transport to Majuro to protest to the government that they were starving. A Trust Territory official, after seven hours of efforts to persuade the people to leave the ship, radioed for food and agreed to stay on Ujelang until the supply ship returned. The supply ship returned with food on November 3, 1967. 72. In December 1967, the High Commissioner of the Trust Territory began a small-scale relief effort for the Enewetak people, but by November 1968 the people on Ujelang were totally out of rice, flour, sugar, and other imported goods. Ten deaths resulted from very serious measles and chicken pox epidemics in 1968. 73. In June 1972, a typhoon destroyed the breadfruit crop on Ujelang. On August 30, 1972, a supply ship found that the Enewetak people had been out of rice, flour, sugar, and canned meat for over two weeks.

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74. The specific instances of deprivation described in paragraphs 66-73 are only illustrative. Deprivation of these and other types were repeatedly suffered by the people of Enewetak during the time they were on Ujelang. 75. The suffering and hardship of the Enewetak people while on Ujelang was noted by the U.S. Department of Interior in a letter to the President of the US Senate dated January 14, 1978 which stated in relevant part: The people of Enewetak Atoll were removed from their home atoll in 1947 by the U.S. Government in order that their atoll could be used in the atomic testing program. The people were promised that they would be able to return home once the U.S. Government no longer had need for their islands. . . During the thirty years that the Enewetak people have been displaced from their home atoll they have suffered grave privations, including periods of near starvation, in their temporary home on Ujelang Atoll. The people have cooperated willingly with the U.S. Government and have made many sacrifices to permit the United States to use their home islands for atomic testing purposes.

F.

U.S. Use and Occupancy of Enewetak 76. The United States exclusively used and occupied Enewetak Atoll from 1947

to 1980 under a series of temporary takings and for a variety of purposes including nuclear weapons testing, intercontinental ballistic missile testing, high energy rocket testing, cratering experiments, and the study of marine biology. During this period, the U.S. prevented the Enewetak people from returning to Enewetak, while maintaining their ultimate right to return. 77. Between April 1948 and August 1958, Enewetak Atoll was the site of 43 atomic and thermonuclear (hydrogen) bomb tests. The tests began with Operation SANDSTONE, in April and May 1948, a series of three atomic weapons blasts ranging in

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strength from 18 to 49 kilotons. Operation GREENHOUSE, held in April and May 1951, included four atomic tests. In November 1952, the atoll was the site for Operation IVY, which included th w r 'fsthermonuclear explosion, estimated at 10.4 megatons e ol sit d r (5 t e get t n h Hrsi a o b,s e a a h h id 50 k o n 70i s r e h t i h bm )a w l s "i y l 0' i t m ar a e o m l g e" lo atomic bomb explosion. In Operation REDWING, held from May through July 1956, 12 atomic and hydrogen bomb tests were conducted. In Operation HARDTACK, held from May through August 1958, 22 thermonuclear devices were exploded. 78. The tests listed in paragraph 77 were detonated in the air, on towers, on the surface of islands and reefs, on barges, and underwater. S m o t "rud e s o o e fh gon zr , r e o" surface level explosions, were on the islands themselves, some were on the reef, some were in the lagoon, and one was in the ocean nearby. In addition, two plutonium experiments were conducted on the island of Runit in which the devices did not fully detonate but instead sprayed chunks of plutonium across the island. 79. The U.S. Department of Energy described the devastating effects of the nuclear tests as follows: The immense ball of flame, cloud of dark dust, evaporated steel tower, melted sand for a thousand feet, 10 million tons of water rising out of the lagoon, waves subsiding from a height of eighty feet to seven feet in three miles were all repeated, in various degrees, 43 times on Enewetak Atoll.

See, U.S. DOE, Enewetak Radiological Support Project, Final Report, NVO-213, September 1982. 80. Nuclear testing on Enewetak ended with the last Operation HARDTACK test on August 18, 1958. On August 22, 1958, President Eisenhower announced a suspension of further atmospheric testing, to take effect October 31. The Nuclear Test Ban Treaty,

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which banned atmospheric and underwater testing, entered into force on October 17, 1963. 81. During the 1960's, Enewetak was the target and impact area for tests of Intercontinental Ballistic Missiles fired from Vandenberg Air Force Base in California. 82. In 1968 and 1970, two test firings of a developmental HEUS rocket motor were conducted on Enjebi Island by the U.S. The rocket motors tested each contained 2,500 pounds of propellant of which 300 pounds was beryllium. Beryllium is toxic to man when inhaled and lodged in the lungs. The first test, in April 1968, resulted in an unexpected explosion which scattered propellant, including beryllium, over the western tip of Enjebi. The second test in January 1970 fired successfully scorching the land but did not result in an explosion. 83. The Pacific Cratering Experiments Program (PACE) of the United States Defense Nuclear Agency and the Air Force occurred in the 1970's and involved the detonation of charges of high explosives to provide a means of predicting the impact of nuclear detonations upon strategic defense installations. This resulted in twelve detonations of 1,000 pound charges, drilling of over 190 holes into various islands of the atoll from 200 feet to 300 feet in depth, movement of 185,000 cubic yards of soil, and the digging of 86 trenches on various islands each 7 feet deep. 84. In October 1972, the United States District Court for the District of Hawaii granted a preliminary injunction to the people of Enewetak under the National Environmental Policy Act prohibiting further work on PACE until adequate environmental impact studies were conducted. People of Enewetak v. Laird, 353 F.

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Supp. 811 (D. Hawaii 1973). On June 8, 1973, the Air Force terminated the PACE program on Enewetak. 85. The nuclear testing program, missile testing, rocket test firings, and the cratering experiments program caused serious damage to Enewetak Atoll. Five islands in the atoll - Bokombako (sometimes referred to as Elugelab), Louj (sometimes referred to as Lidilbut), Bokaidrik, Boken (including a small unnamed islet to the west of Boken), and Eleleron - were completely or partially vaporized by the nuclear tests. The remaining islands on the north half of the atoll, where the nuclear testing, rocket test firings and cratering experiments occurred, were severely damaged. The major residential island of Enjebi, was heavily contaminated with radioactivity, as was the island of Runit. Debris and wreckage -- radioactive and nonradioactive -- littered many of the islands. The a lsaon a sr uldm gd Large bomb craters covered many of the islands. t l l o w se os a ae. o' g i y The entire atoll was agriculturally devastated: vegetation was completely stripped from many of the islands, and nearly all plants of agricultural and economic value on the atoll were totally destroyed. 86. In 1978, the Under Secretary of the U.S. Department of the Interior, James Joseph, voiced his concern that the Compact would permit the United States to walk away from its obligations to the people of Bikini. He urged the U.S. ambassador ngtt gh C m athtt U id te solm k c a t tt i r a eo an t o pct " e n e Sa s hu ae l rh iwl e r ii e a h t t d e a lgd itself as having a continuing responsibility, for the indefinite future, for nuclear damage it Ma hl. Ct g "i ar od f i a u t n ad h f thtt nh e r as in a d m le r o m s l li " n t a t " e s l" i s c c c ao e c a h U id te er i s m sus dn 98 i r pct Bk i t U dr n e Sa s ge o l i es i16 wt e eto i n"h ne t t g uy g e h s i, e Secretary argued that:

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[W]e should not today assume that we can responsibly know now or predict for the future the fate of the damaged Marshallese . . . or their land. If that is so, then we believe that the United States should continue to remain responsible, and should treat the damage problem on an ad hoc basis, obtaining legislation and appropriations to meet such needs as arise, when they arise. I recognize that this is untidy, but so is the problem of nuclear damage. 87. In 1988, 41 years after defendant entered into the Trusteeship Agreement, a high-ranking U.S. State Department official assured a Congressional committee that df dnw s fl cgi n o orepni li t t [ep o the Marshall e nat a " l on at f u r os itso h pol f e uy z s b ie e e Islands] under the [United Nations] Trusteeship Agreement and particularly Article 6, which enumerates the responsibilities of the U.S. towards the people of Micronesia. These include . . . protecting the inhabitants against the loss of their lands and resources. We intend fully to discharge our respos its ni li . b ie " 88. Prior to 1980, the Enewetak people had no way of determining the extent of the damages to their atoll because they were isolated on Ujelang Atoll and were prevented by the U.S. from returning to Enewetak. G. Partial Rehabilitation and Resettlement of Enewetak Atoll 89. On April 18, 1972, Franklin Williams, the United States Special Representative to the Micronesian Political Status Talks, announced that the United States would return Enewetak Atoll to the people of Enewetak by the end of 1973. 90. In October 1973, the United States Atomic Energy Commission published a radiation survey of the atoll which proposed a plan for a nuclear cleanup operation. From 1972 until 1977, various United States government agencies engaged in studies and planning for radiological cleanup and rehabilitation programs.

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91. From May 1977 to April 1980 the United States undertook cleanup efforts. Some members of the Enewetak community participated in the cleanup operation, and for that purpose resided on Enewetak Atoll temporarily and periodically during that period. In October 1980, the Enewetak people returned to Enewetak Atoll. 92. Despite the cleanup efforts, the Enewetak people have been able to resettle only the southern portion of the atoll. The northern islands, including the major residential island of Enjebi, remain off limits because of concerns that the remaining radioactivity (principally from cesium and strontium) renders these islands dangerous for habitation, agriculture, and many other uses for a period estimated to be approximately twenty years to fifty years. 93. The Enjebi island members of the Enewetak community are still unable to return to their home island of Enjebi and to their other northern islands because of concerns of residual radiation contamination. 94. Notwithstanding the cleanup effort, the islands listed in paragraph 85, which before the testing were productive and economically valuable, have been totally or partially vaporized. 95. Notwithstanding the cleanup operation, and in part as a result of this operation, Runit Island has been rendered totally unusable. It presently contains more than 110,000 cubic yards of plutonium-contaminated soil and debris that during the cleanup operation were collected from throughout the atoll, mixed with cement and water to form a slurry, placed in a bomb crater on Runit, and covered by a concrete dome 18 inches thick and 370 feet in diameter. Runit is expected to be extremely radioactive and dangerous for at least the next 24,000 years and therefore requires a long-term stewardhip

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program similar to long-term stewardship programs, including a regular monitoring regime, for waste sites containing radioactive material required in the United States. 96. The cleanup efforts d ntea t dm g tt a l saon efr i o r i h a aeo h t l l o stot d pr e e o' g h in paragraph 85. 97. In connection with the cleanup efforts, extensive amounts of plant material and topsoil that were contaminated with plutonium were removed, doing further longterm damage to the agricultural productivity of the atoll. Agriculture, livestock raising, and certain foraging activities are now limited to the southern islands. As a result of these changes, the people of Enewetak are dependent for their diet upon a supplemental food program conducted by the United States, and will remain so for several years to come. 98. Notwithstanding the cleanup effort, public concern about the radioactivity level of food produced on Enewetak Atoll threatens to reduce the ability of the Enewetak people to market their agricultural product, particularly copra, as a cash export crop. In addition, public concern about the radioactivity level at Enewetak continues to threaten any type of economic development. 99. The Enewetak people were unable at any time prior to 1980 to resettle their atoll and determine the full extent and duration of their claim. H. 1980s U.S. Claims Court Cases 100. After their return to Enewetak in 1980, the Enewetak people were, for the first time, able to determine the duration of the temporary taking and the extent of the damages, although the full effects of harmful radiation on their atoll has yet to be determined.

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101. On September 15, 1982, plaintiffs filed a Complaint in this court seeking, inter alia, compensation from the U.S for the temporary taking of their Atoll, and compensation for the breach of an implied-in-fact contract. See Johannes Peter, et al., v. United States, Docket No. 461-82L. 102. In 1981 two other groups of Marshall Islanders sought compensation from the U.S. for damages relating to the nuclear testing program: the people of Bikini (Tomaki Juda, et al., v. United States, Docket No. 172-81L) and the peoples of other Northern Marshall atolls and islands directly downwind from the test sites (twelve cases consolidated under the lead case Limojwa Nitol, et al., v. United States, Docket No. 45381L). I. Procedural history of the Claims Court Cases 103. The cases filed in the Claims Court in 1981 and 1982 were suspended for m rt n ya" odro vii e e ne i t [ c ns n o tas t ] oeh a er i ret ao n r r c wt h Mi oei pli ltu a n d tf e h e r a ic a s ngtt n,n tpr it pre t ep rd l aceo t n fh c i s eo aosado e th a i o xl e i o t r l i o t lm . ii m e ts o p m i s uo e a " Juda v. United States, supra, 6 Cl. Ct. 441, 445 (Cl. Ct. 1984). The Court terminated the sses n n 93r et gh G vrm n s o taqet n ru etn nt g upni i 18,e cn t oe et pli l uso a m n ad o n o j i e n ' ic i g i t th " pco fr g ply o lt gh css rce]s oc a ad tets h t i at n oe n o c [fei t ae poed intl r n absi a e m i i tn e e, vr i i c" di t ths a " oe c i s e n r t ad gh t e r m ny lm which are the grist of the judicial y de , n a e e a m l,a i l lt fnt n fh cut Tasr tf rcei sn isprc a yh uco o t s or" r c po poed g i Juda, (April l tu r e i i . n i n 13, 1983). 104. The cordn d h US G vrm n s o oso i i iall three utei t .. oe et m t n t d m s n e e n ' i s s cases. In Juda, the court held that the Bikinians had stated claims under the Tucker Act for takings in violation of the Fifth Amendment and for breach of an implied-in-fact

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contract that created fiduciary obligations to the people of Bikini. The court also held that the claims were not barred by sovereign immunity or the statute of limitations. Juda v. United States, supra. As to the takings claim, the court hl t t[ lr t i s fh e h " ] e rn o t d a a l sa t e Blo Rgta ap cb t t U id te w e vrt a at . Id. at 458. i f i s r plal o h n e Sa s hr eihs c d l h e i e e t t e e" 105. In the Enewetak case, this Honorable Court held that the complaint properly stated a claim under the Tucker Act for breaches of an implied-in-fact contract that imposed fiduciary obligations on the United States, and that this claim was not barred by the statute of limitations or by sovereign immunity, but it also concluded that that the claim of the Enewetak people for the taking of their atoll was barred by the statute of limitations. Peter v. United States, 6 Cl. Ct. 768 (1984). That ruling with respect to the taking claims was appealed by plaintiffs on the grounds that the court erred in dismissing the takings claims because the taking was temporary and plaintiffs had no way of knowing the extent and duration of the taking until 1980 when they were permitted to return to Enewetak 106. In the other 12 cases, the court held that the complaints properly stated claims under the Tucker Act for an unlawful taking. Nitol v. United States, 7 Cl. Ct. 405 (1985). J. Provisions of the Compact and the Section 177 Agreement re nuclear claims. 107. While the Juda, Peter, and Nitol cases were pending in the Court of Claims, the Compact of Free Association went into effect. 108. Section 177(a) of the Compact provides that US G vrm n"cet th .. oe etacp e n s the responsibility for compensation owing to citizens of the Marshall Islands . . . for loss o dm g tpoe y n pr n r u i f m t US nc at t g rga . r a aeo rpr ad e o" e ln r h ..ul re i por t s s tg o e e sn m

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Section 177(b) provides that the United States and the Marshall Islands would negotiate a separate agreement for the " sad dqa ste et flsc c i s C m at f j tn aeut el n o a uh lm . o pco u e tm l a " Fe A sc t n co 18 ( e C m at c )P bL N .9 r s ii A tf 95 t " o pcA t , u. . o9-239, 99 Stat. 1770 e o ao h " (1986), Tit. II, Sec 201, Art. VII, §§ 177(a), (b). 109. Pursuant to Section 177(b), the governments negotiated a separate " gem n B tenh G vrm n o t U id te ad h G vrm n o t A r et e e t oe et fh n e Sa s n t oe et fh e w e n e t t e n e Marshall Islands for the Implementation of Section 177 of the Compact of Free Associati ""et n 7 A r m n ) o ( co 17 ge et . n S i e " 110. The Section 177 Agreement established a $150 million trust fund, the income from which was earmarked for nuclear-affected atolls and for other programs related to the legacy of the nuclear testing program. Article IV established a Nuclear Ca s r ua( r ua ) i " rd t n o edri le r i lm Ti nl" i nl wt j i ii t r e f adt m nation upon all i b T b " h u s co n n e claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Por . . T e et n 7 A r m n poi dht rga .. h Sco 17 ge et rv e t $45.75 million of income from m " i e d a the trust fund was to be made available to the Tribunal over a 15-year period to pay out awards, and after 15 years, at least 75% of the income earned by the trust fund was to be m d aaalt t Ti nlfr i usm n in payment of monetary awards made ae vib o h r ua" d br et l e e b o s e b t Ca s r uai sbeun ya . yh lm Ti nln usqeter" e i b s 111. By its own admission, the defendant made no effort to calculate the magnitude of the damages and injuries inflicted upon the Marshall Islanders in deciding the amount of the payments under the Section 177 Agreement. Asked by the House It i C m ie fr dcm n w i r l th cl li s t A m n t t n n r r o m teo "ou et h h e e t a u t n"h d i sao eo t s c f c e c ao e ir i

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m d " dt m n hwm c sol b pit ec gop f lm n ,t ae t e r i o uh hu e a o ah ru o c i at"h o e e d d a s e A m n t t n epne t tn [ c] ou etei. d i sao r odd h "o s h dcm n x t ir i s a u s s" 112. The people of Enewetak were not parties either to the negotiations on the Compact or the Section 177 Agreement. 113. Defendant engaged in self-dan ad or o i"eo an"h Sco el g n ce i n ngtt g t et n i cn ii e i 177 Agreement. K. C ut rl g nh e et fh Sco 17 gem no c i s orsu n o t f co t et n 7 A r etn lm ' i e f e i e a 114. When the Compact went into effect, the court directed the parties in the Juda, Peter and Nitol cases to submit briefs on whether Congress had withdrawn the consent of the United States to be sued in the U.S. Claims Court. In a decision in the Juda case filed November 10, 1987, the court dismissed the complaint on the ground that Article XII of the Compact Section 177 Agreement had amended the Tucker Act, thus wt r i t U id te'osnt b se frhs c i s Juda v. United i da n h n e Sa scneto e ud o t e lm . h w g e t t e a States, 13 Cl. Ct. 667, 689 (1987). Similar orders were filed that same day in the Peter (13 Cl. Ct. 691 (1987)) and Nitol cases (13 Cl. Ct. 690 (1987)). 115. The court in Juda asserted that the Section 177 Agreement established an alternative procedure for compensation of property. The court said: " ] nn o t s css a C nr s blhd ln f ' [n oe fh e ae hs oge ao se p i is I e s i a tf claims. The Compact recognizes the United States obligation to compensate for damages from the nuclear testing program and the Section 177 Agreement establishes an alternative tribunal [the Nuclear Claims Tribunal] to provide such compensation." " Whether the compensation, in the alternative procedures provided by Congress in the Compact Act, is adequate is dependent upon the amount and type of compensation that ultimately is provided through those procedures." " e et ste et rv e ` eut cm est n Wht rh el n poi sa qa ' o pnao h e tm d d e i cannot be determined at this time."

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" alternative procedure for compensation cannot be This challenged judicially until it has run its course." Juda v. United Sta